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CROWN - Crown liability for acts of servants

Thursday, June 03, 2021 @ 5:49 AM  

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Appeal by John Doe from a trial decision dismissing his claims for sexual abuse suffered by him as an air cadet at the hands of an officer, CM, in his squadron during the early 1970s. CM allegedly sexually assaulted the appellant at an air cadet camp. The appellant argued Canada was vicariously liable for CM’s conduct. The appellant was between 14 and 16 at the time of the offence. CM was 20 and 22. The trial judge accepted that the appellant was sexually abused by CM at the camp and that CM had initiated the sexual activity. The trial judge found that the camp incident was outside the scope of CM’s role, deliberately hidden from others and was never reported by the appellant. She concluded that the one incident of sexual abuse at the camp in 1970 was not sufficient to trigger vicarious liability on the part of Canada and that the sexual abuse was not related to any enhanced opportunity or power relationship given to CM by Canada. The appellant argued the judge’s intermingling of negligence considerations into her vicarious liability analysis caused her to reach the wrong result on vicarious liability.

HELD: Appeal dismissed. Despite the judge’s consideration of negligence factors in her vicarious liability analysis, she considered the factors identified in the jurisprudence to assist in determining the strength of the connection between CM’s duties and his wrongdoing, and ultimately concluded that the connection between CM’s assigned tasks and his wrongful conduct in relation to the appellant was not strong and not sufficient to justify imposing vicarious liability on Canada. The tasks Canada assigned to CM did not materially increase the risk of his sexual predation of the appellant or provide CM with an enhanced opportunity for wrongdoing. While CM had a degree of power and authority over the appellant, it was not significant, and his power and authority were limited specifically to developing and teaching instructional programs for cadets. Although these incidents took place in Canada’s space, they took place after hours and not in a location associated with CM’s role as instructor for the projectionist course. The trial judge’s decision as a whole was based on consideration of the factors properly informing a determination of vicarious liability and was in keeping with the law respecting vicarious liability. The judge’s determination that the one incident of sexual abuse was insufficient to trigger the imposition of vicarious liability was unfortunate but was not the basis for her ultimate determination that Canada was not vicariously liable.

John Doe v. Canada (Attorney General), [2021] N.J. No. 94, Newfoundland and Labrador Court of Appeal, J.D. Green, L.R. Hoegg and F.P. O'Brien JJ.A., April 13, 2021. Digest No. TLD-May312021007